Sports gambling case could have severe repercussions for environmental policy

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At first blush, sports gambling and the environment would seem to have little in common. Yet, as I explain in a brief I filed this week on behalf of PLF, CEI, and the Cato Institute, the two may be linked in a case currently pending before the Supreme Court.

The case concerns New Jersey’s attempt to legalize sports gambling and its run-in with the unconstitutional Professional and Amateur Sports Protection Act. That statute forbids states, except New Jersey from “authorizing” sports gambling “by law,” which the Third Circuit has interpreted to forbid states from liberalizing their own sports gambling prohibitions. So interpreted, the statute patently violates the Constitution’s anti-commandeering doctrine.

That doctrine provides that Congress cannot simply command the states to do the federal government’s bidding, by requiring them to adopt and implement federal policy. “States” cannot be “reduce[d] . . . to puppets of a ventriloquist Congress,” as the Ninth Circuit has eloquently put it. Yet that’s what PASPA does, by commanding states to prohibit sports gambling by federal decree, despite the wishes of the states and their voters. The Third Circuit decision being appealed threatens to substantially weaken that doctrine, by allowing the federal government to impose its will on states so long as it doesn’t force them to adopt a particular policy initially. Once a state adopts the federally approved policy, however, Congress can force them to continue doing so as long as it pleases.

And that’s why the case implicates environmental policy. Today, most of our major environmental statutes are implemented through so-called “cooperative federalism,” under which the federal and state government’s cooperate to adopt and implement environmental standards. Eroding the anti-commandeering doctrine would make such arrangements far more difficult.

Federal-state cooperation on environmental regulation is particularly useful because states have greater local knowledge and more available enforcement officers. But if the federal government could indefinitely impose its will on states after they initially agree, that would threaten these cooperative federalism arrangements, with far reaching affects.

For instance, if the federal government used its spending power to entice a state to adopt federal policy as its own, it could then forbid the state from ever changing its policy. When the state cried foul, the federal government could respond that, despite all appearances, the state isn’t being commandeered because it was not compelled to adopt the policy originally. Obviously, a state would be extremely wary to cooperate in implementing federal environmental policy if it knows that, once it does, it may be permanently giving up its sovereignty. That would make cooperative federalism arrangements far more treacherous, not only undermining federalism but also the policy goals that these arrangements advance.

Over the long term, it’s pretty clear that no one would benefit from undermining this system. Cooperative federalism offers the federal government a more efficient method to implement policy, while at the same time giving states considerable leverage to help shape federal policy and flexibility to determine how overarching policies will affect their particular state.

However, despite these long-term benefits, it’s also easy to imagine a federal government willing to give into the temptation to sacrifice them in order to secure an immediate political victory, by barring states from pulling out of unpopular or too-costly programs. Yet that’s precisely what the anti-commandeering doctrine, and federalism generally, are intended to prevent.

“[T]he Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” However pressing the national problem may seem, “a judiciary that licensed extraconstitutional government . . . would, in the long run, be far worse.”